Mapstrick v. Ramge

• Decision Date: 16 October 1879
• Citation: 2 N.W. 739,9 Neb. 390
• Parties: JOSEPH MAPSTRICK AND OTHERS, PLAINTIFFS IN ERROR, v. FRANK RAMGE, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

2 N.W. 739

9 Neb. 390

JOSEPH MAPSTRICK AND OTHERS, PLAINTIFFS IN ERROR, v. FRANK RAMGE, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 16, 1879

ERROR to the district court of Douglas county. In the county court where the action was brought, Ramge, plaintiff there, had verdict and judgment in his favor, which was affirmed on error in the district court. From the judgment of affirmance Mapstrick and others, defendants in the county court, brought the case here upon a petition in error.

AFFIRMED.

N. J Burnham, for plaintiff in error.

There is no conspiracy in this case. Conspiracy in the eye of the law is the corrupt agreeing together of two or more persons to do by concerted action something unlawful as a means or end. Bishop, sec. 149. The act must be unlawful, and it must be injurious to an individual or the public, by reason of the combination. When the injury contemplated by the conspiracy is of the former class, and is meant to fall upon an individual in distinction from the public at large, the combination must be of a nature to place the conspirators on an unfair ground toward him, a ground which alone one with the evil intent would not occupy--and whether an individual or the public is to be wronged, the wrong must be of a sufficient magnitude for the law to notice. Taking this case in the light of the above rule of law, there is certainly no conspiracy. Commonwealth v. Hunt, 4 Met., 111. As to the offense of the conspiracy itself, there is no difference whether the unlawful thing is the means or the end. If both means and end are unlawful a fortiori, the offense is constituted. If neither is unlawful there is no offense. State v. Rickey, 9 N.J.L. 293. State v. Norton, 23 Id., 33.

Plaintiff further claims that, although a waiver as to personal service may be held, they cannot waive that which they have no power to control; that is, they cannot, by appearing on a day after said term has expired, give the court, even by consent, that which the legislature has expressly provided it shall not have. Consent cannot give jurisdiction to the subject matter. Thompson v. Steamboat J. D. Morton, 20 Ohio State 26. Place v. Welch, 3 W. L. M., 611. If the court has not the capacity to try a question, except under particular conditions or when approached in a particular way, the parties cannot by consent waive the conditions or approach the court in any other way. An order made under such circumstances will be absolutely void. Walker v. Walker, Ex. 4, W. L. M., 32.

John L. Webster and Ralph E Gaylord, for defendant in error, cited Johnson v. Jones, 2 Neb. 135. Kane v. U. P. R. R., 5 Neb. 105. Barnes v. Badger, 41 Barb., 98. Fiero v. Reynolds, 20 Barb., 275. Jacobs v. Morange, 1 Daly, 527. People v. Brennan, 3 Hun., 671.

OPINION

COBB, J.

The plaintiff in error makes two points: First, that the petition in the court below does not state facts sufficient to constitute a cause of action; and second, that said cause, which was originally tried in the county court of Douglas county, was argued and submitted to the jury, verdict rendered, etc., on the seventeenth day of May, 1876, that being after the third Monday of the month, at a time when the court had no authority to act.

The petition is certainly rather scant, and had a motion been made for an order requiring the plaintiff to make it more definite and certain, it would probably have been sustained. But after verdict, I think the allegations of the petition sufficient to sustain the judgment.

The petition alleges that the plaintiff was damaged by reason of the defendants having, pursuant to a conspiracy previously formed between themselves, on the thirty-first day of March, 1876, stopped working for the plaintiff, and returned to him all jobs of work then in their hands in an unfinished condition, and did return to the plaintiff various and numerous pieces or jobs of work (tailoring) in an unfinished state, which were entirely worthless in said unfinished condition. That said plaintiff could not at said time get any men to finish said work. Whereby said plaintiff had been damaged in the sum of $ 371.00.

One of the issues made by the answer was that the plaintiff sustained no damage by reason of the return to him by the defendants of the said jobs (garments) in such unfinished condition, and there was testimony before the jury in the county court to that point. I do not think that there is much difficulty in the proposition that, where a merchant tailor has a large number of journeymen working for him...